Former US Attorney on travel ban: ‘President Trump was clearly acting consistently with [the relevant] statute’

Responding to Patterico on Trump’s Executive Order on Immigration

by ANDREW C. MCCARTHY

This is a very long post responding to Patterico’s lengthy disagreement (at Red State) with my column affirming the lawfulness of President Trump’s temporary ban on entry into the United States by various classes of aliens — a column in which I rebutted David Bier’s attack on the ban’s lawfulness in a New York Times op-ed. Readers interested in the topic should understand that this post assumes familiarity with the competing positions of Mr. Bier and yours truly. Readers with little or no interest in the legal esoterica underlying the president’s executive order (EO) should go read the G-File, the Morning Jolt, Ed Whelan’s Bench Memos take on Judge Gorsuch, or something else immensely more enjoyable than what follows.

I am a Patterico fan. Still, for all its detail, his critique is underwhelming. We have a deep disagreement about executive power, which is par for the course. Some of his other charges, though, are odd.

He accuses me, for example, of “dismissing textualism” in the interpretation of statutes – specifically, the two relevant provisions of immigration law: Section 1152(a), which, as Patterico and Bier correctly assert, prohibits certain forms of discrimination in immigration matters; and Section 1182(f), the basis of Trump’s executive order, which permits temporary bans on classes of immigrants. This is dismaying because I have a long record (including as a long-time prosecutor and appellate advocate) of arguing that laws have to be interpreted as they are written, not according to parol evidence and extra-sensory perception of what legislatures were supposedly trying to accomplish.

With no shortage of snark, Patterico says I’ve essentially erased the text of 1152(a)’s prohibition against discrimination based on country of origin and invited readers to substitute my allegedly text-free speculation about the “the hearts of the legislators”; that way, we get to imagine that the statute applies only to “nasty and mean discrimination by racist types”; riding this flight of fancy then frees us to distinguish 1152(a) from 1182(f), which I’m said to portray — with similar disregard for text – as “good discrimination based on a desire to protect the country” (bold and italics in original).

This is a specious contention. It’s not atextual statutory interpretation to rely on what Congress has actually said. In Section 1152(a), which is entitled “non-discrimination,” lawmakers expressly announced their intention to bar discrimination based on “the person’s race, sex, nationality, place of birth, or place of residence” — or, if scorn is your thing, the kind of nasty and mean discrimination engaged in by racist types.

By contrast, in Section 1182(f) (entitled “Suspension of Entry or Imposition of Restrictions by President”), Congress affirms the president’s power to ban temporarily any class of immigrants whose entry “would be detrimental to the interests of the United States.” The plain language of the statute shows that “detrimental” refers to threats to the nation’s security, not the nation’s racial or ethnic composition.

Is this just my imagination? No. Congress explicitly indicates that it is addressing temporary measures: Under 1182(f), the president may “suspend” entry “for such a period as he shall deem necessary,” and impose other conditions that are warranted by the situation that has prompted the ban (“he may . . . impose on the entry of aliens any restrictions he may deem appropriate”). In addition, 1182(f) is one subsection of a statutory scheme, the provisions of which prescribe other bases for excluding aliens that are patently related to national security — e.g., serious diseases, convictions of serious crimes, espionage, sedition involving violent overthrow of the government, terrorism, adverse foreign policy consequences, membership in Communist or other totalitarian parties or organizations, and the like.

Note that the argument against which Patterico’s makes his textual objection was not my main one. Its significance was to call into question whether there is actual conflict between 1152(a) and Trump’s EO based on Section 1182. Like Bier, Patterico assumes the conflict is manifest. Thus, he ignores a fundamental rule of construction: When two laws are claimed to be inconsistent, and when Congress has not expressed a clear intention to repeal the former by the latter, courts will indulge any plausible interpretation that reads them in harmony rather than conflict.

By my interpretation, they can easily be read in harmony: Congress has prohibited discrimination by classification based solely on racial or nationality grounds, but it has maintained discrimination by classification – including nationality grounds – if the president judges that it is temporarily necessary for the country’s protection. I would agree with Patterico that this construction would be problematic if I were pulling congressional intent out of my hat; but, again, I am relying on what Congress itself has said — and not in vaporous legislative history but in the text of the statutes in question.

The rule of construction I’ve just discussed relates to another rule that is similarly basic: Congress is presumed not to repeal statutes by implication; there must be a clear expression of legislative intent. Though Patterico says he prefers textualism to psychoanalysis, he offers no textual evidence that, in enacting 1152(a), Congress intended to repeal the allegedly inconsistent 1182(f) — no doubt because there is no such evidence to be had. Instead, he accepts Bier’s claim that Congress simply must have intended, in silence, to remove a critical national-security authority it had granted the president. That seems farfetched, especially when it is so easy to give force to the non-discriminatory objectives of 1152(a) without divesting the president of authority to take temporary action in a crisis.

Patterico exaggerates my views on the scope of executive powers — and in some instances, whether they are my views as opposed to my reliance on judicial decisions. Furthermore, he exaggerates the “plenary” constitutional power of Congress to exclude aliens.

For what it’s worth, I believe, as the Framers held, that the president’s constitutional authority is at its height in matters involving foreign threats to the United States; but domestically, the president must generally defer to Congress. Contrary to Patterico’s suggestion, my views on the extent of the president’s power are not make-it-up-as-you-go-along, exploiting the convenience that Article II does not define executive power with the exactitude of Article I’s prescription of legislative power. They are rooted in precedent.

That is especially so with respect to the Foreign Intelligence Surveillance Act (FISA, which I had to litigate extensively as a prosecutor, and in the debates over which I have been enmeshed ever since). I believe the president has inherent authority to collect foreign intelligence outside the limits Congress sought to impose in FISA because the courts have said so. Before FISA was enacted in 1978, they said foreign intelligence gathering was an inherent constitutional power (which means it cannot be repealed by a mere statute – repeal would require a constitutional amendment). When FISA was enacted and later amended, the Carter and Clinton administrations, respectively, maintained in congressional testimony – even as they worked with Congress to draft the legislation — that FISA did not and could not vitiate the president’s inherent authority (i.e., they were reserving the power, at least in the event of an emergency, to conduct warrantless surveillance and searches of foreign agents). And even after 9/11 (while President Bush’s controversial warrantless surveillance program was ongoing), the Foreign Intelligence Surveillance Court of Review (the highest specialized court created by Congress in FISA precisely to interpret surveillance law) assumed that foreign intelligence collection is an inherent executive power that neither FISA nor any other statute could take it away. (As the Court of Review put it: “The Truong court [i.e., the Fourth Circuit’s in the 1980 case of United States v. Truong Dinh Hung], as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. [Footnote omitted] It was incumbent upon the [lower FISA] court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.”)

Similarly, with respect to the president’s near plenary authority over foreign relations, and specific authority to repel foreign threats to national security, I rely on judicial precedent and observations of the Founders contemporaneous with the adoption of the Constitution — such as the remarks by Jefferson (the nation’s first Secretary of State) cited in my column: The president is supreme in foreign affairs other than the Constitution’s express exceptions (e.g., the Senate’s treaty approval power). In the Civil War-era Prize Cases, for example, the Supreme Court held that the president has not only the power but the duty to put down imminent threats to national security, regardless of whether Congress has authorized the use of force. As I’ve repeatedly argued, this power is not limitless — it requires an actual threat. I opposed President Obama’s intervention in Libya, for example, because there was no threat to American national security, so I believed the president needed to defer to Congress’s authority to declare war; but I supported Obama’s drone strikes against terrorists in nations against which the U.S. is not at war and under circumstances that were only arguably covered by Congress’s Authorization for the Use of Military Force.

Patterico, by contrast, comes close to contending that presidential power has no independent Article II basis and is subject to whatever limitations Congress chooses to legislate. With due respect, this flies in the face of our jurisprudence, and of statutory law in which Congress, by granting sweeping presidential authority, implicitly (and sometimes explicitly) recognizes the executive’s wide constitutional berth in the areas of foreign affairs and foreign threats to national security.

Patterico’s contrary view — a familiar one — rests on Justice Robert Jackson’s well-known concurrence in the Korean War-era steel seizure case (Youngstown Sheet & Tube Co. v. Sawyer(1952)). There are several notable aspects of this opinion that those who tout it somehow never get around to mentioning. To begin with, it is a concurring opinion – i.e., it did not capture a majority of the court. The steel seizure case was actually decided not on Justice Jackson’s sliding-scale theory of executive power, but on the theory that I espouse: Even in wartime, the president’s authority over domestic matters in Congress’s near-plenary regulatory domain — like interstate commerce and labor relations – is severely limited. Second, Jackson’s sliding scale expressly recognizes that there are some instances in which Congress must defer to the president. When he speaks of presidential power being at its “lowest ebb” — i.e., when the president acts in contravention of a statute – Jackson was not saying the president has nopower; he was saying the president has “his own constitutional powers” but must accommodate any “constitutional powers of Congress.” He was not saying, as Patterico would have it, that the president’s “actions cannot be sustained.”

It is ironic that Patterico places such emphasis on Jackson’s steel seizure concurrence. If we apply it to the executive order, he loses.

In essence, President Trump is in the opposite position of President Truman. Unlike Truman, Trump has acted in an area where presidential authority is that its peak – namely, directly against aliens potentially threatening the homeland, not against domestic corporations and their workforces whose connection to a wartime threat overseas was attenuated. And unlike Truman, Trump acted completely consistently with a sweeping statutory grant of authority by Congress. That is why he was on such solid ground. That is why it comes as no surprise that the Justice Department’s Office of Legal Counsel (OLC) endorsed Trump’s EO, and why the grandstanding Sally Yates, for all her social-justice blather, could not articulate any concrete legal objection to the EO (and note that Yates, clearly familiar with OLC’s assessment, did not rely on Bier’s New York Times op-ed, though it had been out for several days).

The only way Patterico could even be in the ballpark is if we accept Bier’s contention that 1182(f) has been repealed, or at least significantly curtailed, by 1152(a). As we’ve seen, that is not a plausible theory.

My preliminary “even if arguendo” point, which Patterico spent so much energy trying to knock down, was that even if we pretend 1152(a) has repealed part of 1182(f), Trump would still be on firm footing, because (1) even allowing for Congress’s constitutional power to regulate the status of aliens, the president still has constitutional power to block alien threats to national security; and (2) it is easily possible to construe Congress’s prohibition of classifications based on racial and nationality bias as fully operative while simultaneously recognizing the president’s power to take temporary measures against a nationality-based class of aliens that threatens national security.

I stress that that is my preliminary argument to illustrate that Patterico (like Bier) has already lost even before I get to my main argument. When we turn to that argument – i.e., when we move from the hypothetical “even if” scenario to the situation in which we actually find ourselves — it is abundantly clear that 1182(f) is still perfectly good law and has not been curtailed by 1152(a) since they are not in conflict. There is thus no merit in the claim that Trump’s EO, based on 1182(f), is unlawful. And even if there were doubt (which there is not), a court would defer to the president because of his undeniably strong constitutional authority in matters involving foreign threats to national security.

Owing to my admiration for Patterico, I have given this response more time than I had (and gone on much longer than I intended). So, I am not going to get into his factitious parsing of the EO (e.g., I am somehow wrong to say that Trump “relied on” a statute he took pains to cite). Nor is it worth unwinding Patterico’s theory that Trump may not discriminate by nationality classifications because we must read 1152(a) as an absolute prohibition against such classifications . . . even though Congress itself has continued to discriminate by such classifications. (Carried away by his flourish of ridicule at my supposed atextual mind-reading of Congress, Patterico seems to have missed my point: In 1152(a), Congress was explicitly banning racism and related prejudices – such as nationality-based exclusions – but not impeding security-based exclusions. Thus, since Congress itself continued endorsing nationality-based classifications for national-security purposes, there is no reason to believe Congress, in enacting 1152(a), intended to affect, much less saw itself as repealing, 1182(f). Thus, even if you believe, as Patterico seems to, that the president’s constitutional power is irrelevant, the EO is fully justified by the statute on which Trump relied, 1182(f).)

The estimable Patterico insists it comes down to whether the president had constitutional authority to act in defiance of a congressional statute. I simply disagree. While I believe the president would have such authority in a matter involving potentially threatening aliens attempting to enter our homeland, there is no need to decide that fraught constitutional question. President Trump was clearly acting consistently with a statute that (a) has never been repealed; (b) can be read harmoniously with a later statute prohibiting exclusions rooted in racism and ethnic prejudice; and (c) endorses temporary, nationality-based exclusions for national-security purposes.